Phillip Barnes has had name suppression since his offending. Photo / Facebook
On the face of it, Phillip Barnes was an accomplished professional, a highly trained and senior government manager with a glowing career.
A family man. A good guy.
But behind the scenes Barnes was spiralling rapidly into "addictive behaviour" - porn, alcohol, prescription medication - and later desperately and dishonestly fought to hide his dirty secret.
After more than two years the Herald can finally reveal that the 65-year-old Browns Bay man was the criminal offender who planted a spy camera in an Auckland gym - capturing almost 40,000 images of unsuspecting and innocent people.
And we can tell you, after a lengthy legal battle to lift the veil of secrecy, how he used his senior position with a Crown organisation at the forefront of the national Covid-19 pandemic response to convince the court to keep his name secret.
Just after 2pm suppression lapsed for Philip Barnes, meaning the full details of his case can now be published, including how he tried for more than a year to hide his offending from his employer IANZ (International Accreditation New Zealand) and managed to convince a court - with no input, proof or support from the agency - that its reputation would suffer extreme hardship if he was named.
But IANZ - which works closely with many government departments, including medical laboratories to ensure they are meeting international regulations and standards - had no idea he was even before the courts and say they are deeply disappointed Barnes misled them.
The Herald first learned of the case in early 2018 but was not able to report on the outcome until June 2020.
Barnes had admitted planting the camera but was discharged without conviction and granted permanent name suppression.
In October last year the High Court overturned both the sentence and suppression - saying the decision was based on "incomplete and inaccurate information".
Further it ruled that "knowledge of the fact that a high-ranking public servant has committed this offending is clearly in the public interest".
The High Court decision came after a police appeal against the original sentence and suppression order.
Barnes then mounted a second appeal - which was dismissed.
The Court of Appeal ruled that the High Court had based its decision on the correct facts.
"It did consider mitigating factors, but concluded they were not significant enough to impact the gravity of the offending," said Justice Susan Thomas.
"We agree with that assessment. The offending was undoubtedly serious,"
She said that Barnes' offending was serious and "should not be hidden" by the lack of a conviction,
Further, he certainly did not meet the "extreme hardship" threshold to warrant name suppression.
"The adverse consequences of his job loss and adverse consequences for his job prospects flow from the offending, not the publication of his name," said Justice Thomas.
"The principle of open justice clearly favours publication in the circumstances."
IANZ-accredited labs have been tasked with taking the lead on processing Covid-19 tests across the country.
Barnes was promoted to the role of acting CEO while his case was before the courts and after he had entered a guilty plea.
He never disclosed the matter to IANZ and even when they suspected he had been convicted following the Herald article on his sentencing, he refused to confirm or deny it, then resigned.
IANZ chairman Paul Connell said the agency was deeply disappointed in Barnes.
"As an organisation we do not tolerate any kind of criminal behaviour, especially offending of this nature, and had no knowledge of the offending during the perpetrator's time at IANZ," he said.
"We are confident that based on our internal investigations, offending of this kind did not happen on our premises or to any of our employees."
Connell explained that after the District Court decision was published in the Herald he became "suspicious" and "attempted to obtain information" from Barnes.
"IANZ was then put to the time and expense of approaching the District Court for information. That application was ultimately usurped by the Crown appeal of the District Court decision and it was then that the prosecutors realised that in fact Mr Barnes' employer did not know.
"IANZ is deeply disappointed that it has been misled and deceived in this way."
Connell said there was no way IANZ would have supported Barnes bid for secrecy.
"The offending will undoubtedly cause reputational damage for the offender," he said.
"IANZ agrees with (the judge) that it is the offending, more than the conviction that causes the damage.
"IANZ is pleased that a decision has been made based on the correct facts, including that it was not aware of Mr Barnes' actions at any time during his employment.
"It is disappointing that this was required."
Connell said contrary to what the court was told, there was "no impact" on IANZ as a result of Barnes offending.
"IANZ is committed to its role as an established, reputable organisation protecting the health and wealth of New Zealand," he said.
"When concerns arose regarding Mr Barnes' possible involvement IANZ has invested significant time and expense in trying to ascertain whether Mr Barnes was the person in question, or not.
"This could have been avoided had Mr Barnes been honest and complied with his obligations.
"IANZ has gone to great lengths to uncover the truth and to ensure that it is clear that it was also misled and deceived."
He said Barnes never would have been promoted if IANZ had been aware of the court proceedings.
Barnes, according to a press release from IANZ when he was appointed, was born and raised in the United Kingdom but moved to New Zealand in 1999 following his sister and their mother.
He joined IANZ a short time later as manager of the national accreditation programme for medical testing laboratories, radiology and pharmacy.
"As an IANZ advisor to ISO and Standards NZ, he introduced the international medical testing standard to New Zealand and completed the world's first assessment against the standard in Wellington in April 2003," a historic IANZ biography for Barnes stated.
In 2006 he moved to a role within the Waitemata District Health Board as laboratory services manager for North Shore and Waitakere Hospitals and was appointed director of allied health, scientific and technical staffs in 2008.
"At the same time, he spent two years as acting group general manager of hospital operations, responsible for 700 staff and a $65 million budget," said the bio.
He returned to IANZ as general manager of accreditation services in 2014.
"Trained in the United Kingdom as a medical laboratory scientist, Barnes is a Fellow of the UK Institute of Medical Laboratory Science," his bio continued.
"He worked as head of technical services for the Wolverhampton Hospitals Trust, while also lecturing in medical laboratory science and clinical biochemistry at Wolverhampton University.
"A keen runner who did the London Marathon earlier this year (2014) Barnes also set up joint IANZ/NSU audit programmes for the National Breast Screening and the National Cervical Screening units."
In June last year the Herald revealed that Barnes had been granted a discharge without conviction on one representative charge of intentionally making an intimate visual recording of another person.
The court heard that over four days in November 2017 Barnes placed a small "USB spy camera" under the sink of two unisex changing rooms in the gym he attended.
The camera - held in place by velcro strips Barnes had attached under hand basins - recorded images of a number of men and women in various states of undress.
A woman spotted the camera and alerted the gym manager who called the police.
They found a total of 39,360 still images and 12 video files on the camera, showing six victims in various states of undress or naked.
Eight months after Barnes was charged he admitted the offending.
But he sought a discharge without conviction and permanent suppression for himself and IANZ.
The court was told that Barnes suffered "addictive behaviour" relating to "alcohol, his intensive fitness regime, prescribed medication and pornography" which he admitted watching three to four times a day.
He told a pre-sentence report writer that his offending was motivated by that porn addiction.
"He said he had never carried out similar acts in the past and did not think of the consequences at the time.
"He reported working 50 hours a week and secretively drinking up to two bottles of wine a night to 'sedate' himself."
Barnes told the report writer: "Initially I thought I would do it only once".
He was later diagnosed with mild clinical depression and was prescribed medication which he later stopped taking.
In an affidavit provided to the court, Barnes tried to minimise his offending saying his recordings were "amateur and showed low levels of intimacy".
He attributed his actions to "debilitating depression, stress and feelings of inadequacy" and said he "decided" to offend "in order to seek additional escape".
Further, he said he had a "strong subconscious desire to get caught in order to break the downward spiral of addiction, inappropriate behaviour and self harm".
He was general manager at IANZ at the time of the offending and responsible for about 800 clients.
The court heard that Barnes was going to leave but when a senior person retired, he agreed to take on the role of CEO. The company was unaware that he faced charges.
An independent employment lawyer told the court that if Barnes was named, it was "likely" he would lose his career and suffer reputational damage.
Barnes' bid for permanent suppression was based on the "maintenance of the integrity of IANZ as an organisation".
He said he would stay in the CEO role during the Covid-19 response and any publication would "disrupt his work and require him to stand down, leaving IANZ without governance".
Judge Clare Bennett noted that IANZ was "crucial to the fight against Covid-19" and naming the organisation or offender would have "severe consequences for the country".
The court heard Barnes was "extremely remorseful" and that he, his family and IANZ would suffer "extreme hardship" if he was named.
At the time he said would likely lose his job and salary which would impact his ability to pay his mortgage.
If that happened the family would "be required to downsize into a rental property".
He claimed if he was named his wife - who held a senior well-paid role - would have to resign from her job as it would be "untenable".
There was no affidavit evidence from his wife in support of that claim.
No evidence was presented to the District Court from IANZ in support of the offender.
However, Judge Bennett granted him a discharge without conviction and permanent name suppression, saying she was satisfied that publication of Barnes' name would "result in extreme hardship for him and his employer".
Police then appealed her decision.
The appeal was heard in the High Court at Auckland by Justice Simon Moore in September.
The Crown submitted that Judge Bennett made errors when she granted the discharge and suppression applications and effectively minimised the seriousness of the offending by relying on the wrong information at sentencing.
And they said her decision was based on Barnes' claim he would lose his job and bring his Government-owned company into disrepute - but there was no evidence either scenario would eventuate.
It emerged in the High Court hearing that IANZ had no idea about Barnes' court case.
After the Herald published the initial sentencing story, IANZ asked Barnes if he was the offender and he refused to comment.
IANZ then went to the court seeking the name of the offender in the Herald story, evidence filed in support of his discharge and suppression and the identity of his employer.
Connell also "challenged" Barnes by email.
Barnes replied, but would not confirm or deny he was the offender.
"The exchange ended when Mr Barnes tendered his resignation," court documents state.
Crown prosecutor Mark Harborow told the court that Judge Bennett "was plainly wrong" in her decision.
Further, she did not refer to or consider the views of the victims - one who was appalled and furious Barnes had "gotten off completely scot-free" for his "gross crimes".
The judge also referred to the wrong police summary of facts at sentencing - meaning she did not weigh up the correct and full information.
Barnes' lawyer Ron Mansfield told the court that Judge Bennett's decision was right and should be upheld.
He conceded Judge Bennett referred to the wrong summary, but at the end of the day her decision reflected the "obvious unmeritorious reputational damage" that would be suffered by IANZ if Barnes was identified.
He said it would have distracted IANZ from its work and "perhaps sadly on the national fight against Covid-19".
Mansfield acknowledged IANZ was "never aware of the offending" and said the District Court was not misled - in fact, the information presented in support of Barnes at sentencing was not challenged by police.
The Herald was also heard at the appeal and argued that Barnes' identity and role with IANZ was a matter of extreme public interest and should be published.
Justice Moore ruled Judge Bennett was "wrong" in her assessment of the gravity of Barnes' offending and relied on "incomplete and incorrect information".
He said she formed a "false impression of certain key personal factors" and Barnes allowed her to "base her decision on an inaccurate perception of his offending".
"I am satisfied the judge was wrong to characterise the offending as she did," said Justice Moore in his October decision released to the Herald.
"It was unequivocally serious offending. It is the very sort of conduct that (the charge of making intimate visual recordings) was intended to capture and punish.
"There was no evidence before the court that Mr Barnes advised his employer of the charge, the nature of the offending or that he admitted the offending by pleading guilty.
"Indeed, the evidence which has been filed subsequently suggests that Mr Barnes went to considerable steps to conceal these matters from IANZ… at no point did he advise his employer of his predicament or disclose to IANZ any information, which he was obliged to under his employment contracts… regardless of whether a conviction would follow.
"Irrespective of whether Mr Barnes was convicted or not, he had an obligation to inform his employer."
Justice Moore also accepted the Crown's submission that there was no evidence that IANZ would suffer reputational risk or that Barnes' conviction being publicised would compromise its ability to perform its role at a time of national crisis.
"Significantly, IANZ, as the party most directly affected, was never consulted… it is plain that if IANZ had been informed it would likely have adopted a contrary position.
"Certainly IANZ has made it clear that it does not support suppression."
Justice Moore said he had "real reservations" about a discharge without conviction as it would mean prospective employers would be denied any knowledge of Barnes' offending.
"Any role Mr Barnes will apply for will necessarily be a senior one carrying a high level of responsibility," he said.
"Any prospective employer will owe duties to its clients, staff and colleagues. They cannot discharge those duties if they are left in the dark."
Justice Moore ruled that keeping Barnes' offending a secret was "simply wrong and unfair".
He said people had a right to know about his actions.
"It will be for Mr Barnes to explain his conviction and offending… in any event there is no evidence that he intends to seek new employment.
"Indeed, it seems that Mr Barnes may be contemplating setting up his own business or consultancy."
Justice Moore quashed the discharge without conviction and suppression.
"Just as it is not my place to protect the commercial interests of businesses, it is also not my function to shield the reputation of an organisation from legitimate scrutiny," he said.
"Knowledge of the fact that a high-ranking public servant has committed this offending is clearly in the public interest.
"I accept the prurient interest which publication of this case and Mr Barnes' name will excite - I also accept that publication will be embarrassing… and no doubt distressing for (him) and no doubt distressing for his family and close friends.
"But that is not a sound or principled basis for suppression - particularly where the unsavoury facts arose from Mr Barnes own conduct."
Justice Moore also considered the victims' views - something he said Judge Bennett had failed to do.
One told the court that Barnes' crime was "perverted" and it was important that people knew about the "sickening acts".
"By keeping this crime secret from the public, we are not protecting the community," the victim told the court.
"The public should be informed of what this man has done."
Justice Moore said the comments "elegantly" expressed why Barnes should not be granted name suppression.
"The public interest in disclosure plainly supplants the private and personal interests of Mr Barnes maintaining his anonymity," he said.
"The threshold for extreme hardship is not made out."
Justice Moore convicted Barnes and ordered his case be sent back to the District Court for sentencing.
Mansfield said new details would be provided about Barnes' current employment and "deteriorated" health.
He said those details including information about Barnes' "continuing treatment regime" were crucial to a judge determining an appropriate sentence.
Mansfield said a further application for a discharge without conviction could be made on the basis of those changes.
However Justice Moore said the offending was serious and he was not willing to depart from convicting Barnes.
"The consequences of a conviction are not disproportionate," he said.
A sentencing date is yet to be set for Barnes.
The Herald requested an interview with the offender but Mansfield did not respond.
The woman who found the camera was angry when Barnes was granted suppression.
"The New Zealand public have a right to know that crimes such as these are occurring in our public spaces," she said.
"And that there will be consequences for those individuals who carry out such disgusting crimes - no matter what your status or occupation might be."
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